January 25, 2013

Aaron Tobey had the text of the Fourth Amendment written on his chest as he went through an airline security checkpoint two years ago in Richmond. He was soon detained, arrested and charged with disorderly conduct. State prosecutors later dropped the case.

Tobey sued in Alexandria federal district court, alleging speech and detention constitutional violations. A trial judge dismissed the Fourth Amendment claims but kept alive Tobey's allegation that the authorities retaliated against him for exercising First Amendment rights.

The appellate court decision means Tobey's claims under the First Amendment can proceed in the trial court. The ruling, however, doesn’t necessarily mean he will win the case. Lawyers for TSA, represented by the U.S. Justice Department, had argued there was no violation and that, assuming Tobey had a valid claim, the defendants are immune from suit because the speech right wasn't clearly established.

Writing for the majority, Judge Roger Gregory, joined by Judge Allyson Duncan, said it is "crystal clear that the First Amendment protects peaceful nondisruptive speech in an airport, and that such speech cannot be suppressed solely because the government disagrees with it."

Here's the background: Tobey was scheduled to fly out of Richmond in December 2010. Anticipating he would be subject to enhanced screening, the appeals court said, Tobey had earlier written the words of the Fourth Amendment on his chest as a silent form of protest.

Security officials diverted Tobey from a standard metal-detection screening to a full-body pat down screen.

Before walking into the "advanced imaging technology" unit, Tobey put his sweatpants and t-shirt on a conveyor belt. At this point, he was only wear shorts and socks. An agent told Tobey that he didn’t have to take off his clothes. Tobey, the appeals court said, wanted to express his concern that advanced-screening procedures were unconstitutional.

Displayed on Tobey's chest: the text of the Fourth Amendment. A security official called airport police for assistance.

"At no point did Mr. Tobey refuse to undergo the enhanced screening procedures. Nor did he decline to do anything requested of him," Gregory wrote today.

Tobey was immediately handcuffed and arrested for allegedly creating a public disturbance. TSA agents didn't tell police what happened at the screening checkpoint. The police, the court said, did not ask.

The appeals court said officers, during an interrogation, "threatened him with various criminal sanctions." The authorities detained Tobey for more than an hour. Later, he boarded a plane without any further delay. (Tobey was charged with disorderly conduct. State prosecutors didn’t pursue the case.)

In Alexandria federal district court, a trial judge ruled for the government in dismissing Tobey's Fourth Amendment claim of unlawful detention. The judge, Henry Hudson, concluded that Tobey's "bizarre" behavior justified further police inquiry.

Hudson, however, did not void Tobey's allegation that police violated his First Amendment rights. TSA asked the Fourth Circuit to reverse. The Fourth Circuit panel divided over whether the First Amendment claim can move forward.

"Even conceding that Mr. Tobey’s behavior was 'bizarre,' bizarre behavior alone cannot be enough to effectuate an arrest," Gregory said in the appellate court ruling. The court said later: "bizarre does not equal disruptive."

The court called it "reasonable" that Tobey would take off his shirt and sweatpants, saying that passengers at airports "routinely remove clothing" at security checkpoints.

One issue in the case will be whether Tobey's protest—the words on his chest—caused his arrest. That's the requirement for a First Amendment retaliation claim. The appeals court said that, perhaps, down the road after further litigation, Tobey will not be able to meet that requirement.

The court, however, said that "without further discovery, we are unable and unwilling to speculate as to the outcome."

The appeals court, Gregory said, is not "unreasonably tying the hands" of the authorities. The "reasonable measures" officers could have taken, the court said, included fining Tobey if there were a violation or "more simply, asking Mr. Tobey to put his shirt back on."

Judge J. Harvie Wilkinson III disagreed with the majority and wrote in dissent, saying Tobey's First Amendment claim should not be allowed to proceed.

"[W]hile some may consider plaintiff Aaron Tobey’s conduct to be cute or even funny in retrospect, it was no laughing matter at the time," Wilkinson said. The judge said that had Tobey's protest taken place anywhere other than at a security screening point, "we would have a much different case."

Tobey's behavior, Wilkinson said, "diverted defendants from their passenger-screening duties for a period, a diversion that nefarious actors could have exploited to dangerous effect."

TSA officials, the judge said, "responded as any passenger would hope they would, summoning local law enforcement to remove Tobey—and the distraction he was creating—from the scene." Wilkinson called the majority decision "not only unwise, but also profoundly unfair."

"Whether TSA screening procedures are too intrusive and demeaning is surely a debate worth having, and Tobey may well have something of value to contribute to it," the judge said. "But TSA agents also perform what is indubitably a vital function, and it is sometimes necessary to make small sacrifices to achieve greater gains or, as in this case, to avoid catastrophic loss."